India: Conventional Brands In Digital World: Coming To Terms With Altered Realties

Last Updated: 11 December 2014
Article by Priya Anuragini

Digital technology presents enormous marketing opportunities for conventional brands that hitherto relied on traditional methods of marketing such as radio and television commercials. To begin with, it allows firms to market themselves locally, regionally, nationally and internationally at relatively lower prices and further enables them to track the effectiveness of their advertisement strategy by simply viewing consumer response rates without conducting expensive consumer research. And as internet penetration improves further in the coming years, there would be significant expansion in the consumer base of online brands making digital marketing a necessity rather than choice. Interface of traditional brands with the digital medium is thus imminent and since digital technology would imply continuous use of information and communication technology which has intellectual property rights at its core, firms need to be aware of different facets of intellectual property that would be pertinent while they use digital media to market their products.

Important considerations for marketing of conventional brands in digital world

While different techniques such as video commercials, brand marketing blogs, E-Commerce shops, mobile advertisements, E-mail advertisements and paid advertisements on different social media platforms may be used for digital marketing, the starting point for any conventional brand is to have a website of its own which serves the purpose of billboard in the digital market and conveys the business message of the firm. Once a professional website has been created, it becomes important to ensure that it acts as an efficient communication channel between the firm and the consumers which, to begin with, would require that consumers visit the website. And to ensure this, firms need a suitable domain name.

The starting point

Domain name is the foundation upon which digital brands are built as domain name is the primary channel which leads the consumers to the website. While a domain name must be relevant, unique and easy to remember, intellectual property considerations also need to be considered while choosing a domain name as with the advancement of Internet communication, domain name has attained as much IP protection as a trademark or trade name owing to its importance as business identifier.

Domain names essentially are easier methods for remembering and reaching internet websites than the numeric IP address. Domain names are divided into hierarchies. The top-level of the hierarchy appears after the last dot ('.') in a domain name and is the most general part of the name. Mostly top level domain name depends upon the function, purpose or geographical location of the website for which it is being registered. Traditionally there were only a few top level domain names such as .com, .org(for non-profit organizations), .edu(for colleges and universities), .net(for network and Internet related organizations) etc. but in 2009 ICANN(Internet Corporation for Assigned Names and Numbers) expanded the category of top level domain names which allows the companies to turn their own brands into domain name extensions. Thus today brands may have top level domain name as. bank, .guru . hotels etc. which is important from the perspective of conventional brands planning to go digital in the coming months as they can propose a new generic top level domain name to ICANN depending upon their business requirements. However many trademark holders, industry groups are arguing that proliferation of new generic Top Level domain names may significantly increase the cost of protecting trademarks and thus brands going for registration of a new top level domain name need to be vigilant.

Next in the hierarchy is the second level domain name which is the name directly to the left of the top-level domain name in an Internet address. Most of the IP disputes that arise over domain names pertain to second level domain names as two identical second level domain names cannot coexist under the same top level domain or it would amount to infringement of trademarks. What further aggravates this conflict is that domain names owing to their global reach need to be unique throughout the world while trademarks may overlap across different categories or geographical locations. For instance it is possible to have same trademark for two different goods in different classes but the same may not be viable in case of domain names as it would direct the web traffic to a different website and may impair the marketing opportunities for both the entities having similar domain names. Also since internet users mostly do not remember the exact domain names and try to guess it from the search results the probability of getting directed to a different website is significantly enhanced. Thus firms should choose such a second level domain name which has the least possibility of getting them embroiled in legal controversy and at the same time be on the lookout for any similar domain name that infringes their rights.

Areas that need attention

Conventional brands need to be cautious against cybersquatting wherein cyber squatter registers domain names deceptively similar to the trademark of famous brands with the sole intention of selling it later to the trademark owners at higher prices. Such speculative domain name registration may adversely impact the business of conventional brands. While India, as of now, does not have any legislation pertaining to cybersquatting, trademark holders have to rely on the common law action of passing off to seek remedy in such instances and judiciary in a no. of cases including Satyam Infoway Ltd. v. Sifynet Solutions Pvt. Ltd., Yahoo Inc. v. Akash Arora has accorded protection to domain names on the basis of passing off doctrine and held that legal norms applicable to trademarks would also be applicable to them.

Trademark holders may also take recourse to .IN Dispute Resolution Policy (INDRP) formulated by .IN Registry for Domain Name Dispute Resolution in India which is in line with ICANN adopted UDRP(Uniform Domain Name Dispute Resolution Policy). INDRP is available for any complaint concerning .in domain names in India. (.IN is the Country Code Top Level Domain Name of India) administered by .IN Registry and covers all domain name disputes pertaining to malafide registration and usage of domain names. INDRP is comparatively more time and cost effective than usual court proceedings.

Domain name hijacking is another threat that conventional brands may have to deal with, in digital markets. Domain name hijackers fraudulently transfer domain names by password theft thereby gaining complete control of victim's domain name for a significant period of time and use this control to defraud the customers of the victim, host dangerous and illegal content. Considering the catastrophic impact domain name hijacking may have, it becomes important to mitigate this risk to the maximum extent possible. One of the ways to do this is to make optimum use of the security tools offered by the registering authority and digital brands should also ensure that the registration data and contact information with the registering authority is up to date. Further Password best practices must also be followed to ensure adequate internet protection.

Once conventional brands have a requisite, sufficiently protected domain name, search engine optimization techniques need to be employed so as to ensure that brand has a strong online presence. Having site optimized for the search engines means to attempt to have top placement in the results pages whenever a specific keyword is typed into the query box of the search engine and requires meticulous planning regarding the content of the website so that it has important key words. In fact many brands at times keep the second level domain name as a keyword so as to ensure better ranking in search engines.

The bottom line is that conventional brands need to be innovative in reaching and engaging customers in the competitive digital market but a beginning has to be made. Considering that India has third largest no. of internet users in the world now is the time for the brands to reinvent them accordingly.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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